Jansen v. Harmon

• Decision Date: 14 January 1969
• Docket Number: No. 53171,53171
• Citation: 164 N.W.2d 323
• Parties: Raymond W. JANSEN and Bernadine Jansen, Appellants, v. Ronald HARMON d/b/a Harmon Heating Service and Louie Katzman a/k/a Louis Katzman, Appellees.
• Court: Iowa Supreme Court

Page 323

164 N.W.2d 323

Raymond W. JANSEN and Bernadine Jansen, Appellants, v. Ronald HARMON d/b/a Harmon Heating Service and Louie Katzman a/k/a Louis Katzman, Appellees.

No. 53171.

Supreme Court of Iowa.

Jan. 14, 1969.

Ronald E. Runge, of Runge & Runge, Sioux City, for appellants.

J. R. Miller, of Miller, Miller & Miller, Cherokee, for appellees.

MASON, Justice.

Plaintiffs Raymond W. and Bernadine Jansen appeal from trial court's ruling sustaining defendant Louie Katzman's special appearance attacking the court's jurisdiction of the subject matter of plaintiffs' action under the provisions of rules 66 and 104(a), Rules of Civil Procedure.

Jansen and his wife had joined in a law action individually alleging in separtate divisions specific acts of negligence and the doctrine of res ipsa loquitur. Each sought separate recovery for injuries sustained by the husband when he was struck on the head and body by a wooden post falling down an elevator shaft from the second floor of Katzman's building.

Mrs. Jansen's claim for damages is based on alleged loss of her husband's consortium. Her right to recover is coextensive with the right of her husband. Ordinarily the wife is not entitled to consequential damages for injuries to her husband where defendants are not guilty of a tort which would give a right of action to the husband. Ziegler v. United States Gypsum Co., Inc., 251 Iowa 714, 715--716, 102 N.W.2d 152, 153, quoting from 41 C.J.S. Husband and Wife § 401c, and citing other authorities. Mr. Jansen will therefore be referred to as plaintiff.

Katzman and his tenant Ronald Harmon, who operated as Harmon Heating Service, were named as defendants. Since Harmon is not a party to this appeal Louie Katzman, sometimes known as Louis Katzman, will be referred to as defendant.

I. Plaintiff had been employed a number of years as a bookkeeper and salesman in a business owned and conducted by defendant under the trade name National Auto Parts Company. Defendant also owned the Booth building in Cherokee located some distance fromt he auto parts store. The operation and maintenance of this apartment and business building were not connected in any way with defendant's operation of his auto parts company.

June 1, 1967, defendant directed plaintiff to stop at the Booth building on his way home from work and load various items belonging to National Auto Parts from the loading dock onto the freight elevator in the Booth building. While standing on the freight elevator plaintiff was struck on the head and body by a wooden post which fell down the elevator shaft inflicting the injuries giving rise to plaintiffs' action.

Neither plaintiff nor defendant had rejected any provision of the Workmen's Compensation Act, chapter 85, Code, 1966.

Defendant's special appearance challenged the jurisdiction of the district court on the ground plaintiff, at the time of injury, was defendant's employee acting in the course of his employment and had made claim for Workmen's Compensation which was accepted as compensable by defendant's carrier. He asserts plaintiff is precluded from bringing suit againt him as a third party tort feasor. The special appearance was supported by affidavits showing that proper proceedings had been had before the industrial commissioner, as the result plaintiff was drawing and acepting weekly compensation payments from Katzman's insurance carrier.

The trial court held the Iowa Workmen's Compensation Act was plaintiff's exclusive remedy against defendant.

Plaintiff concedes in written argument that he was an employee of National Auto Parts, was within the scope of his employment at the time of injury and was being paid Workmen's Compensation benefits by National Auto Parts Company.

II. Plaintiffs assert the court erred in sustaining defendant's special appearance.

They contend since plaintiff was not employed by defendant in his capacity as owner of the apartment building where the injury occurred, defendant cannot be given an employer's status in this separate entity and is subject to suit at common law.

Plaintiffs assert the present facts do not deal with the situation of concurrent or joint negligence of an employer and a third party tort feasor or with the case of an employee suing a negligent employer as third party tort feasor which plaintiffs concede is clearly prohibited by the Iowa Workmen's Compensation Act. They do maintain their action is based on defendant's negligence as owner of a building unrelated to plaintiff's employment, not as an employer.

They further contend the issue whether plaintiff was precluded from joining defendant as a third party tort feasor was strictly a matter of defense and a factual situation rather than jurisdictional; the question cannot properly be determined by special appearance.

III. We first consider plaintiffs' contention the court's jurisdiction of the subject matter cannot be properly determined by special appearance.

'A special appearance has for its purpose the interposing of objections to jurisdiction, such being the sole question placed before the court by such a restricted appearance. (Citing authority)' Tice v. Wilmington Chemical Corp., 259 Iowa 27, 34, 141 N.W.2d 616, 621.

Since a hearing had upon a special appearance is a special proceeding not triable in equity, it is not reviewable de novo on appeal but only on errors assigned with the court's findings of fact having the force and effect of a jury verdict. Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 34--35, 141 N.W.2d at 621--622, and citations.

Where 'a defendant, by special appearance, makes a direct attack upon the jurisdiction of a court the burden is on plaintiff to sustain the requisite jurisdiction, but once a prima facie showing has been made by him the burden of going forward with the evidence is upon defendant to overcome or rebut, if possible, such prima facie case, (Citing authorities)' Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 47, 143 N.W.2d 86--87, supplementing opinion in 141 N.W.2d 616.

In determining the jurisdictional issue presented by a special appearance, courts accept allegations of plaintiff's petition as true and affidavits which may be submitted in support thereof, rules 80(b) and 116, R.C.P., stand as a verity unless contradicted. Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 34, 141 N.W.2d at 621, and citations.

Plaintiffs allege in those divisions of their petition directed against Katzman that Jansen, having the status of an invitee, was injured by Katzman's negligence while on premises possessed by Katzman.

The trial court found that at the time of his injury plaintiff was Katzman's employee acting within the scope of his employment; that National Auto Parts is simply deendant's trade name. There is substantial evidence to support these findings. As stated, plaintiff concedes he was being paid Workmen's Compensation benefits by defendant's insurance carrier.

Plaintiff's contention being considered in this division presents the question, Does the district court have jurisdiction of the subject matter of the action alleged?

The rights and remedies of an injured employee against an employer for industrial injuries, that is personal injuries sustained by an employee arising out of and in the course of his employment, have been taken out of the general, original jurisdiction of the district court and placed in that class of cases exclusively in the jurisdiction of the industrial commissioner by chapter 85. Groves v. Donohue, 254 Iowa 412, 419, 118 N.W.2d 65, 69 amd Price v. King, 259 Iowa 921, 926, 146 N.W.2d 328, 331.

Section 85.3, subsection 1, provides:

'1. Except as provided by this chapter, it shall be conclusively presumed that every employer has elected to provide, secure, and pay compensation according to the provisions of this chapter for any and all personal injuries sustained by an employee arising out of and in the course of the employment, and in such cases, the employer shall be relieved from other liability for recovery of damages or other compensation for such personal injury'

In Groves v. Donohue, supra, 254 Iowa at 419, 118 N.W.2d at 68--69, we said:

'Section 85.20, * * * provides the rights and remedies provided in this chapter for an employee on account of an industrial injury shall be exclusive of all other remedies, and further provides the employee shall be conclusively presumed to have elected to take compensation as provided until notice in writing shall have been served on the employer and industrial commissioner.

'* * *

'Sections 85.4 through 85.15, Code of Iowa, 1962, provide that either or both the employee and employer may reject the provisions of the chapter. Section 85.17, Code of Iwoa, 1962, provides where they have not given notice every contract of hire shall be construed as an implied agreement on the part of the employer to pay and on the part of the employee to accept compensation as provided in this chapter for all personal injuries sustained arising out of and in the course of the employment.'

Section 85.22 provides in part:

'Liability of others--subrogation. When an employee receives an injury for which compensation is payable under this chapter, and which injury is caused under circumstances creating a legal liability against some person other than the employer to pay damages, the employee, or his dependent, or the trustee of such dependent, may take proceedings against his employer for compensation, and the employee or, in case of death, his legal representative may also maintain an action against such third party for damages. * * *'

Plaintiffs are seeking recovery for injuries which they allege were caused by Katzman's negligence. Defendant is urging that the industrial commissioner has exclusive jurisdiction because Jansen was his employee and the injuries were sustained in the course of Jansen's employment. For the district court to have jurisdiction of such subject matter...